How Strife Leads To Triumph (Hartford Courant)
Sunday, October 12, 2008
By: Colin McEnroe

One of the nice things about justice in America is the way all the things that were done to keep you down and smack you upside the head start working in your favor once you get into an appellate court. So it went with the case of Kerrigan et al v. the Commissioner of Public Health et al, which on Friday affirmed the right of gay and lesbian people to get marriage licenses.

If you are a gay or lesbian person reading this, I invite you to take comfort in the realization that every sling and arrow you ever suffered — not just having to do with the right to marry but also having to do with employment, housing, medical care, religious doctrine, bus seats, whatever — was silently added to the pile of insults and injuries that paid for your admission to the quasi-suspect class.

You are not mentioned in the state constitution, but all the crap you took helped to make it seem as if you were mentioned. (Quasi means "as if.")

And similarly, ye homophobes, little did ye know that all the brickbats and jabs and taunts and barriers you tossed up were, paradoxically, slowly building a coral reef of arguments that would one day help a husband have a husband and a wife have a wife.

But it gets better/weirder.

To be in quasi-suspect class you have to lack the political power to get what you want through the normal process of law-making. And this turned out to be the keenest edge in the whole argument. I had Justice David Borden pegged, from the get go, as a fairly reliable vote for gay marriage, but Borden decided that gay people have lots of political clout and are especially well-represented in the state legislature where, as most people know, the two chambers come together at the end of each legislative session for "Sondheim Night" and adjourn, sine die, after singing "Being Alive."

So they lost Borden and dropped down to a slim majority. That group of four ruled that the modest political gains made by gays and lesbians didn't really offset their historical lack of power in our society. And in a odd way, Gov. M. Jodi Rell's continued insistence that she would veto a gay marriage bill kind of proves their point, as did her Friday statement that she thought court majority was wrong and out of step with the majority of people in Connecticut.

The court has to confine its considerations to Connecticut, but I don't. The fact that Obama and Biden, in 2008, still find it necessary to take a stand of flat opposition to gay marriage ought to tell you whether or not gay people have enough power on their own to get something as important to them as marriage without the help of heightened scrutiny from the court. They don't. Not yet.

Which brings me to my final paradox. A court has to consider the question of injury. Is it really so bad that you don't get marriage licenses? We gave you civil unions! They work just the same way!

At that point, every argument that the opposition ever made about how special, how sacred, how precious, how exalted, how fundamental, how crucial the institution of marriage is in our society starts to cut the other way.

If it's that precious and important, it must suck not to have it, right? There must be some injury to the people who aren't allowed to touch this perfect, sparkling jewel.

And that is what the court said. In loftier language.

So it comes to pass that Connecticut joins Belgium, Canada, Netherlands, Norway (effective next January), Spain and South Africa, and two U.S. states ( California and Massachusetts) in the league of places where Noel Paul Stookey's "Wedding Song" must be tinkered with ever so slightly.

Contained in the arguments of the Kerrigan decision is an argument more powerful and beautiful than mere fairness.

It's oddly biblical. The last shall be first. Blessed are ye that weep, that mourn. Blessed are the persecuted.

That's right at the heart of what those four justices said: that the very fact of your suffering is a kind of proof … and that injustice and harm, stretched out over decades, ultimately pull the cord that starts our quiet engine of justice.